Complainant

Respondent

Parties

A Warehouse Operator

A Warehouse

Representatives

David Nohilly Solicitor

Larkin Tynan Nohilly Solicitors

Killian O’ Reilly Solicitor

Fieldfisher Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034762-001

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034762-002

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00034762-003

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00034762-004

20/02/2020

The Complainant is a warehouse operative and commenced working for the Respondent on 1 September 2008. He received gross monthly salary of €2,300.

He was in employment with the Respondent on the date of the hearing of this complaint.

From the information submitted to me, it was clear that the parties had a chequered working relationship.  The parties had claims dealt with by the Labour Court in the past.

CA-00034762-001

This complaint related to the Complainant's hours of work. He submitted that on numerous occasions management would send him home before his rostered finish time. On these occasions he was told there was no work for him. He submitted that there would have been work in other selection areas in the warehouse.

CA-00034762-002

This complaint was that the Complainant was not paid for 25% of the time he was required to be available for work and did not then arise (zero hours). The Complainant give an example of the 31 January 2020 when he was advised it was no work for him. He was told this at 2:30 PM. He was on the roster until 3:30 PM. He submitted that he had colleagues working longer than the roster times. He said he did not understand why he was being treated differently.

CA-00034762-003

This industrial relations complaint related to disciplinary processes commenced against him.  These resulted in no sanction being imposed against him. The Complainant submitted that they were being instigated against him without the prior approval of the HR Manager, in breach of an earlier settlement agreement. The Complainant submitted that the disciplinary proceedings were fictitious and fundamentally flawed. The process was deeply upsetting and traumatic to him.

CA-00034762-004

This complaint was of penalisation for making a complaint under the Safety, Health and Welfare at Work Act 2005. The Complainant explained that on 11 September 2018 he made a complaint regarding his headset that he was required to wear for the purposes of taking orders or instructions on his work duties. He complained that he was receiving phantom orders and that the wearing of the headset was causing him significant headaches which she found stressful and irritating. He submitted the headsets caused a beeping sound which was disorientating and distracting. He submitted it was a constant issue.

The Complainant explained that following this complaint, a subsequent disciplinary process commenced against him alleging gross misconduct and insubordination.

He submitted that he was being penalised for making his health and safety complaint. 

The Complainant contended that he was being portrayed by the Respondent as being difficult and obstructive. He denied this and explained that he was trying his best given his age and his circumstances. He contended that he was one of the oldest workers in the warehouse.

He submitted he was very engaged with the Respondent and had a good working relationship with prior managers. His assertion was that the ethos was now in the Respondent to rush to investigations disciplinary proceedings.

He explained that the handset problem gave rise to his loss of productivity and affected his targets. He genuinely believed there was a problem with his headset, and he submitted that this has been proven technically in the warehouse. He submitted that there were at least 22 to 25 other co-workers who had difficulties with their headsets.

He explained that the work ethos in the warehouse was that pressure, targets and requirement to achieve a high pick rate.

CA-00034762-001

The Respondent's submission was that the Complainant's roster was published three weeks in

advance and his start and finish times were clearly identified. The Complainant was

contracted to work 30 hours per week and only ever failed to work in excess of his

contracted hours in circumstances where he directly contributed to this either through

presenting for his shift later than his rostered time, taking an extended break without

prior approval or authorisation, or requesting to leave early as he has done on a

regular basis.

CA-00034762-002

The Respondent denied this complaint.  It submitted that the Complainant was rostered to work from 6am and he was 59 minutes late for the start of his shift. He exceeded his break by 25 minutes without management approval. He concluded his shift 10 minutes after his rostered finish time of 2.30pm.

CA-00034762-003

On 20 February 2019, the Complainant was invited to an investigation meeting to

discuss his level of absenteeism, specifically: -

-          turning up late for his scheduled shift on 18 occasions in January 2019

-          turning up late for his scheduled shift on 9 occasions in the February 2019

-          failing to complete his planned shift on 24 occasions in January 2019

-          failing to complete his planned shift on 10 occasions in February 2019

The Complainant acknowledged the issue and advanced several mitigating factors. Those factors were considered, and no disciplinary sanction was imposed.

On 14 January 2020, the Complainant was invited to an investigation relating to an

alleged act of insubordination on 01 December 2019 when he left his shift early without

permission. The facts were not in dispute. The Complainant advanced mitigating factors which were taken into account. The matter did not even proceed to a disciplinary hearing and no further action was taken.

The Respondent submitted that in both instances, investigations were commenced in relation to entirely legitimate issues. In both cases, the facts were not in dispute. The Complainant acknowledged the issues, advanced mitigating factors and no disciplinary action was taken against him.

CA-00034762-004

The Respondent explained that the on 11 September 2018 the Complainant made a complaint relating to his headset. He alleged that his headset was causing a beeping sound which he found distracting. He alleged that following this complaint, he was the subject of a disciplinary process alleging gross misconduct and insubordination.

The Respondent acknowledged that the Complainant raised an issue in relation to his headset. It explained that there were approximately 250 operatives in the warehouse. The Complainant was one of only two operatives who raised this issue.  The second operative stated the issue was not affecting him in the same way as the Complainant asserted, but merely sought to affirm the Complainants assertion that a beep was sometimes heard.

When the matter was brought to the Respondent's attention, it investigated the issue

and engaged with the Complainant to find a solution. This solution included identifying

the specific locations in the warehouse, which were potentially causing an issue. It was thought that, in certain circumstances, the headset might beep when its signal

transferred from one transmission terminal to another, much like a mobile phone signal.

The Respondent's maintenance team engaged third party contractors to install

additional booster terminals in the warehouse to address the issue. Furthermore, the

Complainant was furnished with a new headset, which addressed the issue.

The Respondent submitted that it investigated the Complainant’s issue

and despite not finding there to be a health and safety concern, invested further in the

system to ensure optimal coverage. The system is commonplace in logistics operations

globally, is CE certified and continues to operate without issue.

The Respondent explained that there was absolutely no connection between in raising this issue and the investigation in February 2019 which arose because of his repeated absenteeism and the investigation in January 2020 which arose as a result of him leaving his shift early without permission.

It submitted that had it been its intention to penalise the Complainant for raising an issue, it

would hardly have concluded both processes without imposing any sanction whatsoever

on the Complainant.

The Complainant was not penalised for invoking a right conferred on him by the Act. He

was investigated for his high level of absenteeism and for leaving his shift early without

permission, neither of which he denied.

CA-00034762-001

The Respondent maintained detailed records of the rosters and time keeping of the Complainant.

Having listened to the evidence of both sides, I prefer the evidence from the Respondent’s witnesses. 

CA-00034762-002

The Respondent maintained detailed records of the rosters and time keeping of the Complainant.

Having listened to the evidence of both sides, I prefer the evidence from the Respondent’s witnesses. 

CA-00034762-003 and CA-00034762-004

These two complaints are linked.

The Safety Health and Welfare at Work Act 2005 provides that an employer may not penalise or threaten penalisation of an employee for carrying out certain acts. Section 27 (1) to (4) of the Act provides as follows:

27.— (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

I am satisfied that the Complainant has raised “a complaint or representation to his or her safety representative or employer…as regards any matter relating to safety, health or welfare at work” as comprehended by Section 27(3)(c) of the Act in the Autumn of 2018.

The Complainant’s complaint to management and HR regarding his headset problem is a protected Act within the meaning of Section 27 of the Act and that the Act prohibits an employer from penalising an employee for carrying out such an act.

It is clear from the language of section 27 of the Act that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3.   This means that the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act.

In cases of this type, there is a form of shifting burden of proof, similar to that in employment equality law. It is for the Complainant to establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were the operative consideration leading to his treatment by his employer. If those two limbs of the test are satisfied it is for the Respondent to satisfy that the complaints relied upon did not influence the Complainants treatment.

On the balance of probability, I find that the Respondent’s decision to commence its disciplinary process in February 2019 and its disciplinary investigation in January 2020 were not related to the Complainant’s complaints raised regarding the headset in the Autumn of 2018. 

I hold that Respondent gave reasons of the Complainants attendance and time keeping and had evidence to support the decisions it made in February 2019 and January 2020. These actions were not carried out in a precipitous manner or a departure from what would be considered normal HR practice. 

I accept that these were the operative reason for the instigation of the disciplinary process and investigation against the Complainant and that his complaint of penalisation has been made out.

CA-00034762-001

 This complaint is not well founded.

CA-00034762-002

This complaint is not well founded.

CA-00034762-003

I am unable to accept the workers case and make no recommendation.

CA-00034762-003

This complaint is not well founded.

Safety Health and Welfare at Work Act 2005. Penalisation